Family Provision Overview

The Family Provision Act 1982 came into force on 1 September 1983 and applied in relation to a deceased person who died on or after that date. It replaced and expanded the scope of the Testator’s Family Maintenance and Guardianship ofInfants Act 1916. Notable differences were that the Family Provision Act drew no distinction between testate and intestate estates, expanded the categories of possible applicants and extended to notional estate.

The Family Provision Act 1982 was repealed by the Succession Amendment (Family Provision) Act 2008.

The Family Provision Act still operates where the deceased died before 1 March 2009 and enables the court to displace the will of the deceased or the laws of intestacy in respect of the estate of a person who died before that date.

If the court is satisfied that the claimant is an “eligible” person, it may order that “such provision be made ... as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education and advancement in life of the eligible person” – section 7.

The order may take a variety of forms and the court may determine which beneficial entitlements in the estate should bear the burden of the provisions, i.e. if the court makes an order for further provision, from what part of the balance of the estate does that provision come.

The power to make orders designating property as “notional estate” enables the court to nullify the effect of dispositions made during the lifetime of the deceased with the attempt or effect of precluding making further provision for eligible persons.